The Arkansas Supreme Court held that a state law granting the corrections director sole discretion to determine if a prisoner is competent to be executed violates state and federal due process protections.

Only the governor, the Department of Correction’s director and the clerk of the state Supreme Court may suspend a death sentence. See: Ark Code Ann. § 16-90-506(c). The DOC director’s authority to suspend an execution is contingent upon reasonable grounds to believe the prisoner “is not competent, due to mental illness, to understand the nature and reasons for that punishment.” See: Ark Code Ann. § 16-90-506(d).

In 1992, Jack Gordon Greene was convicted of capital murder in Arkansas and sentenced to death. He also had killed his brother in North Carolina.

After his appeals were exhausted, Arkansas Governor Asa Hutchinson scheduled Greene’s execution for November 9, 2017. However, on September 20, Greene’s attorneys asked DOC Director Wendy Kelley to suspend his execution, claiming he was incompetent.

They also filed an action in circuit court, alleging that Greene was not competent to be executed, requesting a competency hearing and seeking a declaratory judgment that his execution would constitute cruel and unusual punishment under the Arkansas and federal constitutions. They argued that § 16-90-506(d) was unconstitutional because it deprived Greene of due process.

Two doctors concluded that Greene suffered from a “delusional disorder” along the “schizophrenia spectrum,” which caused him to experience both “somatic” and “persecutory” delusions. Greene’s mental illness caused him to believe that he suffered from destructive physical illnesses, that his attorneys and doctors were colluding with prison employees to conceal numerous injuries they had inflicted upon him, and that his execution was the final step in their conspiratorial cover-up. Both doctors found that Greene was incompetent to be executed.

Nevertheless, Director Kelley concluded on October 5, 2017 that Greene was competent to understand the nature of the punishment he faced and to reach a rational understanding of the reason for his execution. The circuit court granted Kelley’s motion to dismiss the court action on November 3, 2017, holding that: 1) no statutory authority existed to hold a competency hearing; 2) the Arkansas Supreme Court previously determined that § 16-90-506(d) did not violate due process or separation of powers; 3) Greene’s execution would not constitute cruel and unusual punishment; and 4) the court lacked jurisdiction to stay an execution.

On November 1, 2018, the state Supreme Court reversed the circuit court’s judgment. It held that § 16-90-506(d)(1) is facially unconstitutional because it vests sole discretion in the DOC director to determine whether a prisoner is competent to be executed, in violation of the due process guarantees of the Arkansas and U.S. constitutions.

The Supreme Court rejected Greene’s argument that his mental deterioration during 25 years of solitary confinement rendered his execution cruel and unusual. Nevertheless, citing Panetti v. Quarterman, 551 U.S. 930 (2007) and Ford v. Wainwright, 477 U.S. 399 (1986), the Court instructed that its ruling did not preclude Greene from offering evidence of his mental decline during a Ford-Panetti hearing on remand. See: Greene v. Kelley, 2018 Ark 316 (Ark. 2018), rehearing denied.